Research › Search › Judgment

Punjab High Court · body

2007 DIGILAW 1599 (PNJ)

Sahab Singh v. State Of Haryana

2007-09-05

A.N.JINDAL, MEHTAB S.GILL

body2007
Judgment A.N.Jindal, J. 1. Out of three accused, Gurnam Singh was acquitted, whereas his son accused-appellant Sahab Singh @ Sahabu and one Sukhwant Singh alias Sukha Singh (hereinafter referred to as the accused) were convicted under Section 302 read with Section 34 IPC, by the learned Additional Sessions Judge-I, Kurukshetra, vide its judgment dated 16.3.1998. 2. The facts necessary for the disposal of this appeal as emanating from the prosecution case are that, accused Sahab Singh and his father Gurnam Singh are the residents of village Salpani Kalan, whereas accused Sukhwant Singh alias Sukha Singh is the resident of Dera Adhoya, Police Station Pehowa, District Kurukshetra. On 28.10.1995, at about 5.00 PM, Sahab Singh along with Sukhwant Singh (whose name was ascertained by the complainant Naresh Kumar later on) had visited the shop of Sanjiv Kumar for purchase of Jarda on credit but Sanjiv Kumar refused to do so, resultantly the accused felt insulted; abused him and came back. 3. In the evening at about 8.30 PM, when Naresh Kumar along with Sanjiv Kumar were going to their shop for sleeping as usual and reached near their shop, then Sahab Singh armed with knife accompanied by Sukhwant Singh alias Sukha Singh and Gurnam Singh empty handed came there. Sahab Singh told to teach Sanjiv Kumar a lesson for denying him to sell jarda on credit. Saying so, Sukhwant Singh alias Sukha caught hold of Sanjiv Kumar from behind, whereas Sahab Singh inflicted a knife blow in his abdomen. Resultantly, the intestine of Sanjiv Kumar came out. Gurnam Singh accused then exhorted that he be lifted and thrown into canal. Naresh Kumar complainant cried for help which attracted Jarnail Singh and Charanjit Singh, at this, the accused fled away along with knife. Thereafter, Naresh Kumar with the help of Baljinder Singh shifted the injured to the hospital in an unconscious condition. 4. On the basis of the aforesaid statement made by the complainant Naresh Kumar before SI Chander Pal, which was completed at 2.00 AM on 29.10.1995, the FIR was registered at Police Station Jhansa, at 4.00 AM. The investigation commenced; inquest proceedings were conducted by SHO Chander Pal; took into possession the parcel of the clothes belonging to the deceased; recorded statements of the witnesses; prepared the rough site plan of the place of occurrence; arrested Sahab Singh and Sukhwant Singh on 31.10.1995; took into possession blood Crl. The investigation commenced; inquest proceedings were conducted by SHO Chander Pal; took into possession the parcel of the clothes belonging to the deceased; recorded statements of the witnesses; prepared the rough site plan of the place of occurrence; arrested Sahab Singh and Sukhwant Singh on 31.10.1995; took into possession blood Crl. stained shirt; pyjama and knife got recovered from Sahab Singh on the basis of the disclosure statement. During investigation, accused Gurnam Singh having found innocent, therefore, was placed in column No.2 whereas, challan against the Sahab Singh and Sukhwant Singh was presented in the Court. 5. The accused were charged under Section 302 read with Section 34 IPC, to which they pleaded not guilty and claimed trial. Later on Gurnam Singh was also summoned to face trial along with the other accused. Thereafter, charge was accordingly amended and framed against all the three accused. 6. To substantiate the charge, the prosecution examined as many as 12 witnesses. PW-1 Dr. C.R. Khatri, Medical Officer, L.N.J.P. Hospital, Kurukshetra sent information to the police regarding the arrival of Sanjiv Kumar injured. PW-2 Mukesh Kumar, Draftsman proved the scaled site plan Ex.PB of the place of occurrence. PW-3 Dr. K.K. Chawla, Medical Officer, L.N.J.P. Hospital, Kurukshetra along with Dr. D.S. Saini, conducted autopsy on the dead body of Sanjiv Kumar on 29.10.1995 and proved the report Ex.PC. PW-4 HC Mohinder Singh, PW-5 C. Balwant Singh and PW-6 HC Mahesh Kumar deposed by of affidavits Ex.PD, Ex.PE and Ex.PF respectively. PW-7 Naresh Kumar and PW-8 Charanjit Singh are the eye witnesses of the occurrence. PW-9 ASI Rajinder Singh proved the FIR Ex.PG/1. PW-10 C.Raghbir Singh is the formal witness. He proved the daily diary register Ex.PJ/1. PW-11 Om Parkash is the witness to the recovery of the knife effected from the accused on the basis of the disclosure statement made by him in his presence. PW-12 SI Chander Pal is the Investigating Officer of this case and he proved the investigation conducted by him from time to time. 7. When examined under Section 313 Cr.P.C. the accused denied all the incriminating circumstances appearing against them and pleaded their false implication in the case. However, no defence was led. 8. The trial court while extending benefit of doubt acquitted Gurnam Singh of the charges, whereas convicted accused Sahab Singh and Sukhwant Singh and sentenced them accordingly. Hence this appeal. 9. We have heard Mr. However, no defence was led. 8. The trial court while extending benefit of doubt acquitted Gurnam Singh of the charges, whereas convicted accused Sahab Singh and Sukhwant Singh and sentenced them accordingly. Hence this appeal. 9. We have heard Mr. Vinod Ghai, learned counsel for the appellants, Mr. Kulvir Narwal, learned Additional Advocate General, Haryana and perused the records with their able assistance. 10. As regards the argument that the motive as alleged by the prosecution is too frail to invite any occurrence and the said motive has not been proved on record is without any merit. The motive for commission of the crime has been proved by Naresh Kumar complainant testifying that in the evening of 28.10.1995, the accused Sahab Singh and Sukhwant Singh had come to his shop and when Sanjiv Kumar deceased refused to give Jarda on credit to them, they felt insulted. They abused the deceased and left the place. No meaningful cross examination has been conducted regarding the occurrence which took place at day time at 5.00 PM, therefore, it cannot be said by any stretch of imagination that motive was altogether missing in the instant case. In any case, where there is the presence of the eye witnesses, the existence of motive is not essential. The motive lies hidden in the mind of the accused which is difficult to explore. Some times the crimes are committed for a little motive or without any motive. When the occurrence stands established by the eye witness account and same finds corroboration from the medical evidence, then the motive pales into insignificance. Similar observations were made by the Apex Court in case Baitullah and another v. State of U.P. AIR 1997 S.C. 3946. Here in this case also, the witness namely Naresh Kumar complainant (PW7) has categorically identified the accused, depicted the scenario in systematic manner and categorically deposed that the accused Sahab Singh inflicted a knife blow to the deceased, therefore, the presence of Naresh Kumar at the time when the accused came in the evening to purchase Jarda does not assume importance and is hardly sufficient to throw away his version qua the occurrence specially when his testimony stands supported by Charanjit Singh (PW8). It would also not be inappropriate to discard the testimony of Naresh Kumar complainant (PW7), merely on the ground that he did not intervene to save his brother, because Naresh Kumar was never their target. It is true that in this case, neither blood stained clothes of Naresh Kumar complainant (PW7) nor of Baljinder Singh had been taken into possession, but omission on the part of the Investigating Agency not to take his clothes into possession does not give rise to the inference that he was not present at the spot. Again, it depends upon the mental set up, caliber, intelligency and competency of a witness. As regards argument that why Naresh Kumar did not intervene, it may be observed that some witnesses seeing the occurrence, having been scared move away; some witnesses having been stunned do not intervene; some witnesses raise hue and cry from distance and try to save their own lives from the accused who was bent upon to go to any extent. As such, the presence of Naresh Kumar complainant (PW7) cannot be denied merely for the reason that he did not intervene and the accused did not cause any injury to him especially for the reason that there was no dispute between Naresh Kumar and the accused. It was only Sanjiv Kumar deceased who had refused to give Jarda on credit. Regarding non intervention by a witness, the Apex Court in case Rana Partap and others v. State of Haryana, AIR 1983 680, observed that there was no set rule of natural re-action and the evidence of the witnesses cannot be discarded on the ground that the witnesses did not react in any particular manner. In this case, the witness has stated that he was afraid having seen the knife, therefore, he at this night time, must not have chosen to put his life at peril. 11. Some discrepancies have been pointed out in the statements of Naresh Kumar (PW7) and Charanjit Singh (PW8), but we need not to observe that minor discrepancies as pointed out by the accused are bound to occur in the statements of truthful witnesses. The rustic villagers cannot be expected to state the things with mathematical precision. 11. Some discrepancies have been pointed out in the statements of Naresh Kumar (PW7) and Charanjit Singh (PW8), but we need not to observe that minor discrepancies as pointed out by the accused are bound to occur in the statements of truthful witnesses. The rustic villagers cannot be expected to state the things with mathematical precision. We on perusal of the entire evidence, are fully convinced that both Naresh Kumar (PW7) and Charanjit Singh (PW8) have given details of the incident by sequence in which they had seen the occurrence. The presence of these witnesses at the Crl. spot stand duly established. They had no previous enmity with the accused Sahab Singh as such they had no reason to falsely implicate the accused. It was observed in case Krishna Pillai Sree Kumar and another v. State of Kerala, AIR 1981 SC 1237, that no criminal case is free from the discrepancies and inconsistencies. The main thing to be seen is whether those inconsistencies etc. go to the root of the matter or pertain to insignificant aspect thereof. It was also held in the said judgment that discrepancies which go to the root of the matter; effect the substratum of the case and disturb the skeleton then the benefit of such inconsistency should go to the accused but nothing such was found in the statements of the aforesaid witnesses which may improbablise the prosecution version, therefore, statements of these witnesses cannot be discarded on account of minor discrepancies as pointed out by the learned defence counsel. Their statements also cannot be discarded merely for their relationship as such. Since both Naresh Kumar (PW7) and Sanjiv Kumar (deceased) were going to the shop for sleeping as it is usual in the countryside that people in order to keep watch over their property lying in the shops go to sleep there, therefore, the presence of Naresh Kumar at the spot cannot be doubted. Moreover, the ocular version fits in with the medical evidence. Only one injury is stated to have been caused by Sahab Singh to the deceased Sanjiv Kumar and the same was found on the person of the deceased, as stated by Dr. K.K. Chawla, Medical Officer, L.N.J.P. Hospital, Kurushetra (PW3). 12. The another point which has been argued with vehemence by Mr. Vinod Ghai is regarding participation of Sukhwant Singh alias Sukha in the commission of the crime. K.K. Chawla, Medical Officer, L.N.J.P. Hospital, Kurushetra (PW3). 12. The another point which has been argued with vehemence by Mr. Vinod Ghai is regarding participation of Sukhwant Singh alias Sukha in the commission of the crime. It may be observed that Gurnam Singh father of Sahab Singh has already been acquitted by the trial court as it created doubt over his presence at the spot. As an abundent caution, for the reasons given in the succeeding paras we have doubt over the participation of the accused Sukhwant Singh alias Sukha in the commission of the crime. According to the prosecution itself, Sukhwant Singh alias Sukha was empty handed, since the trial court doubted the presence of Naresh Kumar at the spot in the evening at 5.00 PM, therefore, if his evidence qua his presence in the earlier part of the day is excluded then there is no evidence if Sukhwant Singh accompanied Sahab Singh in the evening at 5.00 PM, when Sahab Singh accused was insulted. In any case, it was only Sahab Singh who quarrelled with the deceased and not accused Sukhwant Singh @ Sukha. He hails from different village and is not related to Sahab Singh. Naresh Kumar complainant (PW7) in the FIR Ex.PG/1 got recorded that he came to know about the name of Sukhwant Singh @ Sukha later on, also indicates about his doubtful identity. It was Sahab Singh who demanded Jarda and not Sukhwant Singh @ Sukha. No allegations have been levelled against him in the FIR as well as in the substantive statements in the Court that Sukhwant Singh @ Sukha was armed with any weapon or that he caused any injury to the deceased. Charanjit Singh (PW8), reached the spot, only when Gurnam Singh was exhorting Sahab Singh that Sanjiv Kumar be thrown in the canal. He did not state if he saw Sanjiv Kumar in the grip of Sukhwant Singh @ Sukha or that if they acted on the command of Gurnam Singh, therefore, his participation in the commission of crime becomes doubtful. The part played by Sukhwant Singh @ Sukha is only that he caught hold of Sanjiv Kumar and not beyond that. He did not state if he saw Sanjiv Kumar in the grip of Sukhwant Singh @ Sukha or that if they acted on the command of Gurnam Singh, therefore, his participation in the commission of crime becomes doubtful. The part played by Sukhwant Singh @ Sukha is only that he caught hold of Sanjiv Kumar and not beyond that. Notwithstanding the fact that the Forensic Science Laboratory vide its report Ex.PO/2 observed that shirt, baniyan, pant, kachha, recovered from the accused Sahab Singh were stained with human blood and the prosecution has also established the recovery of knife from the accused. But, no such clothes of Sukhwant Singh alias Sukha were taken into possession. The presence of blood stains on the clothes of Sukhwant Singh @ Sukha could derive us to attach some authenticity to the factum of his participation in the crime. 13. At the end, Mr. Vinod Ghai has raised marathon arguments by stating that it is a case of single injury and the occurrence took place at the spur of moment. There was no serious motive behind it, therefore, the offence, if any, can be said to have been committed by the accused Sahab Singh falls within the purview of Section 304 Part-II IPC. 14. Having given our thoughtful consideration to the rival contentions and on perusal of the entire evidence on the record, the following factors are to be taken into consideration :- 1. The accused went to the shop of the deceased in the evening of 28.10.1995 at about 5.00 PM for the purchase of Jarda on credit, but the deceased refused, therefore, he felt insulted. Reacting to the refusal, he rebuked the deceased. 2. The accused being the co-villager knew about the movements of the deceased. To have the revenge of the insult, which he faced, he went to the shop equipped with knife which indicate his plan. 3. As soon as the deceased along with his brother reached the Crl. shop, the accused emerged and inflicted a knife blow in his abdomen. 4. Sanjiv Kumar died instantaneously. Dr. K.K. Chawla (PW3), Medical Officer, L.N.J.P. Hospital, Kurukshetra, who conducted postmortem examination on the dead body of the deceased, observed the following injuries on the person of the deceased :- 1. shop, the accused emerged and inflicted a knife blow in his abdomen. 4. Sanjiv Kumar died instantaneously. Dr. K.K. Chawla (PW3), Medical Officer, L.N.J.P. Hospital, Kurukshetra, who conducted postmortem examination on the dead body of the deceased, observed the following injuries on the person of the deceased :- 1. There was an incised wound present in front of abdomen just to the right of mid-line, almost vertical with slight tilt to right side in its upper part. Spindle-shaped, both ends were clean cut. Size of the wound was 2 cms x 0.5 cm which was found after pushing back the loops of small intestines which were coming out of the wound along with a part of mesentery. On exploration the underlying layers of abdomen were cut beneath the wound and wound was going to the abdomen cavity. Abdomen cavity was full of blood (clotted as well as liquid). On further exploration mesentery of small intestines along with vessels were found to be cut. Clotted haematoma was present in the mesentery. A large retroperitoneal haematoma of clotted blood was present and first birucating branch aorta was found to be cut. The upper end of the wound was 4 cms below the lower margin of unilicus. 2. There were abrasions with clotted blood present on the dorsum of right big toe and third toe covering distal phalanx and part of middle phalanx. Both sides of heart were empty. Stomach contained undigested food material. Small intestine contained chime and gases. Large intestine contained fecal matter and gases. Bladder contained small amount of urine. All other organs were healthy and pale. Now in the aforesaid background it would be appropriate to mention that while determining regarding intention of the accused, whether the act falls under Section 304 Part II IPC, the Apex Court recommended to take into consideration various factors which have been enumerated in case Pulicherla Nagaraju alias Nagaraja Reddy v. State of A.P. (2007) 1 Supreme Court Cases 500, while observing as under :- "29. Therefore, the court should proceed to decide the pivotal question of intention, with care and caution, as that will decide whether the case falls under Section 302 or 304 Part I or 304 Part II. Therefore, the court should proceed to decide the pivotal question of intention, with care and caution, as that will decide whether the case falls under Section 302 or 304 Part I or 304 Part II. Many petty or insignificant matters - plucking of a fruit, straying of cattle, quarrel of children, utterance of a rude word or even an objectionable glance, may lead to altercations and group clashes culminating in deaths. Usual motives like revenge, greed; jealousy or suspicion may be totally absent in such cases. There may be no intention. There may be no premeditation. In fact, there may not even be criminality. At the other end of the spectrum, there may be cases of murder where the accused attempts to avoid the penalty for murder by attempting to put forth a case that there was no intention to cause death. It is for the courts to ensure that the cases of murder punishable under Section 302, are not converted into offenes punishable under Section 304 Part I/II, or cases of culpable homicide not amounting to murder, are treated as murder punishable under Section 302. The intention to cause death can be gathered generally from a combination of a few or several of the following, among other circumstances: (i) nature of the weapon used; (ii) whether the weapon was carried by the accused or was picked up from the spot; (iii) whether the blow is aimed at a vital part of the body; (iv) the amount of force employed in causing injury; (v) whether the act was in the course of sudden quarrel or sudden fight or free for all fight; (vi) whether the incident occurs by chance or whether there was any premeditation; (vii) whether there was any prior enmity or whether the deceased was a stranger; (viii) whether there was any grave and sudden provocation, and if so, the cause for such provocation;(ix) whether it was in the heat of passion; (x) whether the person inflicting the injury has taken undue advantage or has acted in a cruel and unusual manner; (xi) whether the accused dealt a single blow or several blows. The above list of circumstances is, of course, not exhaustive and there may be several other special circumstances with reference to individual cases which may throw light on the question of intention. The above list of circumstances is, of course, not exhaustive and there may be several other special circumstances with reference to individual cases which may throw light on the question of intention. Be that as it may." From the aforesaid observations of the Apex Court, we are persuaded to hold that causing of single blow may be one of the circumstances to take out the offence from the purview of Section 302 IPC but the only blow given by the accused by itself would not mitigate to one culpable homicide not amounting to murder. We have following cases, where the single blow inflicted by the accused resulting in death, have been found to be sufficient for conviction of the accused under Section 302 IPC :- 1. Virsa Singh v. State of Punjab, AIR 1958 SC 465; 2. Gudar Dusadh v. State of Bihar, 1972 SCC (Crl.) 438; 3. Vasanta v. State of Maharashtra, 1983 SCC (Crl.) 535; 4. Jai Parkash v. State (Delhi Administration), 1991 SCC (Crl.) 299. While elaborating the legal position regarding single blow injury, the Apex Court in case Jagrup Singh v. State of Haryana, AIR 1981 SC 1552 observed as under :- 6. There is no justification for the assertion that the giving of a solitary blow on a vital part of the body resulting in death must always necessarily reduce the offence to culpable homicide not amounting to murder punishable under Section 304 Part II of the Code. If a man deliberately strikes another on the head with a heavy log of wood or an iron rod or even a lathi so as to cause a fracture of the skull, he must in the absence of any circumstances negating the presumption, be deemed to have intended to cause the death of the victim or such bodily injury as is sufficient to cause death. The whole thing depends upon the intention to cause death, and the case may be covered by either clause firstly or clause thirdly. The nature of intention must be gathered from the kind of weapon used, the part of the body hit, the amount of force employed and the circumstances attendant upon the death". The whole thing depends upon the intention to cause death, and the case may be covered by either clause firstly or clause thirdly. The nature of intention must be gathered from the kind of weapon used, the part of the body hit, the amount of force employed and the circumstances attendant upon the death". While discussing the judgments as referred to above, the Apex Court in case Pulicherla Nagaraju alias Nagaraja Reddy v. State of A.P. 2007(1) SCC (Crl.) 500 (supra) observed that the single blow having been given with great force, causing injury on the vital part of the body, was sufficient to bring out the case out of the Exception fourth of Section 300 and the accused could be convicted under Section 302 IPC. In the instant case also, the accused attacked the deceased in order to have revenge of insult when he has not caused any provocation and he was unarmed. 15 Having considered the medical evidence and while analyzing the facts on the parameters as laid down by the Apex Court in Pulicherla Nagaraju alias Nagaraja Reddys case (supra), we could not convince our mind to hold that the single blow given by the accused, in the given circumstances of the case, particularly keeping in view the nature, size of weapon i.e. knife, used by the accused, part of the body over which the injury was caused i.e in the stomach, a vital part of the body, the nature of the injury resulted in an instantaneous collapse leading to death, leaves no room to doubt that the intention of the accused was to cause death or to cause such bodily injury which was sufficient, in the ordinary course of nature, to cause death. Thus, irresistible conclusion in this case, which could be drawn, is that provisions of Section 304-II certainly could not be attracted and the accused Sahab Singh alias Sahabu could safely be held to have committed an offence under Section 302 IPC. For the foregoing reasons, we partly accept the appeal, acquit the accused-appellant Sukhwant Singh alias Sukha Singh of the charge framed against him and direct that he be set at liberty forthwith. Fine, if any deposited by him, be refunded, whereas the judgment of conviction recorded qua Sahab Singh is maintained. Consequently, his appeal stands dismissed.